Money - following living together

This information applies to both heterosexual and same sex couples. The main fact to consider is that you are not married or in a civil partnership. If you are, please go to our Factsheet: 'Money following divorce'.

As explained in our factsheet: Cohabitation agreements, there is no such thing as a Common Law Husband/Wife and you do not automatically acquire any legal rights to your ex-partner's property or assets just by living with them.

The law relating to how much you will be entitled to when you separate centres around who legally owns a property or whose name a particular asset is in. 

Having said this, there are a limited amount of circumstances in which a partner can seek a legal interest in property or assets not in their name but there are strict rules to be applied in these cases. What follows is an attempt to deal with the most frequently asked questions which arise when unmarried couples separate.

What happens if our family home is owned by my ex-partner in their sole name?

Strictly speaking, if a property is owned in one person's name, only that person has a legal interest in that property. If you are the non-owner in that couple, you will need to be able to prove that you made a significant financial contribution towards that property, the owner agreed to share the property with you and that you relied on that agreement, to your detriment.  

If this claim is defended by the owner, the non-owner an make an application to the Court for an Order determine what your interests are, if any. The Court can also make an Order for Sale of that property, if necessary, in order that both parties can receive their interest in it.

If you are the non-owner and need to provide a home for your children, it may be possible for you to make an application to the Court for provision of a home for your children during their minority. This would not, however, provide you with a greater interest, it would only transfer property/a lump sum to you for the benefit of the children until the youngest child is 18.

What happens if our family home is owned in our joint names?

JOINT TENANTS

If you are both recorded on the Title Deeds as owning the property jointly and there is no mention of the ownership being in unequal shares (for example, you both put equal contributions into the property), it is assumed that you will own the property equally with your partner and will be entitled to 50% of the equity.

The Court will not look any further than the Title Deeds if it appears that the property is jointly owned as joint tenants and there are no further facts to consider.  In these circumstances, it is unlikely to make an Order to provide either person with any more than 50%.

One of the main effects of owning a property as 'joint tenants' is that both yours and your partner's share will automatically pass to the other from your estate should you predecease them.

If you are unsure about how you own your property you will need to check with the Land Registry.

TENANTS IN COMMON

There is a second way that a couple can own a property and that is as 'tenants in common'. 

This situation is likely to occur when one person puts a higher contribution into the purchase of the property and it is recorded by a Deed of Trust.  If you then split up, your legal entitlement will be as recorded in that Deed. If the Deed does not actually specify an unequal share, the Court will assume a 50% interest.

One of the main effects of owning a property as 'tenants in common' is that your share in the property will pass in accordance with your Will or in accordance with intestacy law if you have not made a Will.  It will not automatically pass to your partner.

It is possible to change from owning a property as 'joint tenants' to 'tenants in common' upon separation to ensure that your interest can pass to whomever you choose by severing the Joint Tenancy. We can assist you with this process.

What happens if I do not agree with the percentage I am legally entitled to?

If you believe that the position recorded (or presumed) is unfair, you can take the issue to Court. You will need to show that you made a greater contribution which justifies a departure from the recorded/legal position, that you were lead to believe that your contribution was to give you a greater interest and you relied upon that understanding/agreement.

You will need to provide as much evidence as possible to support your position.

If there are ongoing issues surrounding the ownership of a property and the co-owner dies, you may be able to bring a claim under the Inheritance Act.  We will provide you with further advice on this point.

The property has been my home for many years and now my partner wants me to leave.  What should I do?

If the property is owned in your partner's sole name, they have sole legal entitlement to it, unless you are able to prove a contribution (as mentioned above).

You will not be entitled to receive any part of the value of the property simply because you have lived there.

This is only a brief outline of the facts. For further advice, tailored to your specific needs, please contact Zoe Porter.

What if there are children living in the property?

It may be that the jointly owned property (or property owned by one person) provides a home for the children and that they will be detrimentally affected if the property is sold or the parent with care will not have enough money to re-house the children if they receive what they are legally entitled to. 

In this case it may be possible to ask the Court to make an Order to enable housing to be provided for the children. This could be by way of maintenance, a lump sum being paid or a property being transferred into the name of the parent with care.

It is important to note, however, that if an Order is made in these terms, it will only last as long as the youngest child is under the age of 18. Normally if the child exceeds the age of 18 the funds/property will revert back to the payer.

Steps We Will Take

• We will meet with you to discuss the funding options available to you for such proceedings and will ascertain whether you will qualify for financial help from the Legal Services Commission or, if not, the likely costs involved, to include solicitors costs and court fees.
• We will provide you with initial advice as to how you can protect your position and, if necessary, prevent a sale or remortgage of the property and how you can protect your estate.
• We will guide you through each step of the process. We will draft all of the necessary documents for you to start court proceedings if this becomes necessary and take you through all of the evidence that the Court will need in order to review your position.
• We will communicate with the Court on your behalf and your ex-partner or their legal representatives, to include communications about whether it is necessary to give credit for mortgage payments following separation or to seek occupation rent from the party who remains living in the property.

Our Assurance to You

We know that the breakdown of a relationship is traumatic. We are here to help, not hinder, and to do so cost-effectively and efficiently. At all stages we will advise you of the best way forward for you and will always keep the issue of costs and their impact on any settlement under review.

Our team of experienced and highly trained family lawyers will give you sound and comprehensive advice.

We will always consider whether mediation is the right way forward for you. We also have collaborative trained lawyers.

Contacts

Simon Thomas, Zoe Porter, Sue Dowen, Rachael Shearmur, Penny Rogers, Catherine Reynolds, Rachel Chadwick.

NB – For cases involving foreign or forced marriages, specialist legal advice is required.  Please contact Simon Thomas for further information.